Attorneys for former special counsel Jack Smith have fiercely criticized a new federal watchdog investigation into Smith’s high-profile prosecutions of President Donald Trump, calling the probe “baseless and partisan” in a letter made public Tuesday. The dispute, which has quickly become a flashpoint in the ongoing debate over the role of law enforcement in American politics, centers on allegations that Smith violated the Hatch Act—a federal law barring government employees from engaging in political activity—while prosecuting Trump on charges related to the 2020 election and classified documents.
The controversy erupted after the Office of Special Counsel (OSC)—a watchdog agency distinct from the special counsel position Smith previously held at the Justice Department—confirmed in late July that it had launched an investigation into Smith. According to reporting by ABC News and The Associated Press, the probe was triggered by a referral from Republican Senator Tom Cotton of Arkansas, who accused Smith of intentionally attempting to influence the outcome of the 2024 presidential election through the timing and nature of his prosecutions.
Senator Cotton’s complaint specifically alleges that Smith sought to interfere with Trump’s 2024 campaign by fast-tracking cases, including a request to the Supreme Court to rule on a legal issue before lower courts had weighed in. Cotton’s referral points to Smith’s prosecutions of Trump for unlawful retention of classified materials and for a criminal conspiracy to overturn the 2020 election results as evidence of alleged political motivation.
Smith’s legal team, led by Covington and Burling attorneys Lanny Breuer and Peter Koski, responded forcefully to the OSC’s announcement. In their letter to acting OSC head Jamieson Greer, obtained by both ABC News and The Associated Press, the attorneys wrote, “The predicate for this investigation is imaginary and unfounded.” They argued that Smith’s actions “were consistent with the decisions of a prosecutor who has devoted his career to following the facts and the law, without fear or favor and without regard for the political consequences, not because of them.”
The attorneys further insisted that “a review of the record and procedural history demonstrates the opposite—Mr. Smith was fiercely committed to making prosecutorial decisions based solely on the evidence, he steadfastly followed applicable Department of Justice guidelines and the Principles of Federal Prosecution, and he did not let the pending election influence his investigative or prosecutorial decision-making.”
Smith’s prosecutions of Trump were among the most closely watched legal actions in recent American history. The first case centered on Trump’s efforts to remain in power after losing the 2020 election, while the second focused on his alleged mishandling of classified documents and his refusal to comply with requests for their return. Both cases were dropped after Trump was reelected president in November 2024, in accordance with a long-standing Justice Department policy that prohibits the prosecution of a sitting president. As reported by ABC News, the prosecutions were officially abandoned before Trump took office in January 2025.
The OSC’s investigation has raised eyebrows not only for its timing but also for its scope. Smith’s lawyers noted that the OSC “traditionally has no role in probing the actions of federal prosecutors.” In their letter, they stated, “We are aware of no court decision, prior Office of Special Counsel finding, or other authority interpreting the Hatch Act to prohibit prosecutors from investigating allegations of criminal conduct committed by former public officials or candidates for public office, or prosecuting those cases when the facts and law so dictate.” They warned that “application of such an unprecedented interpretation of the statute risks interfering with the Department of Justice’s ability to investigate and prosecute public officials or candidates for public office.”
Adding to the unusual nature of the situation, Smith’s attorneys revealed that, as of Tuesday, the OSC had not yet contacted Smith directly to seek his cooperation with the probe. Instead, the lawyers urged the agency to engage with them before releasing any findings, writing, “In light of the unprecedented nature of this investigation, if you intend to go forward with this in any way, we insist that you engage with us so that any finding by the Office of Special Counsel is fully informed by the record.”
The investigation into Smith comes amid what some see as an escalating battle over the politicization of law enforcement and the justice system. According to ABC News, the Justice Department has already named Smith among the officials under scrutiny by its “Weaponization Working Group,” a panel formed to examine alleged abuses of power. However, there is no indication at present that Smith faces any criminal investigation as a result of these reviews.
Political reactions to the OSC probe have been predictably polarized. Trump’s supporters have long accused Smith—and the Biden administration more broadly—of using the justice system as a tool to damage political opponents. They point to the timing of Smith’s appointment as special counsel by former Attorney General Merrick Garland in November 2022, just three days before Trump formally launched his 2024 presidential campaign, as evidence of a coordinated effort to undermine Trump’s candidacy. As The Associated Press noted, Trump allies have repeatedly claimed that the prosecutions were designed to “thwart his White House bid.”
On the other hand, Smith’s defenders—including his attorneys and many in the legal community—argue that he was simply doing his job by following the law wherever it led, regardless of the political consequences. They emphasize Smith’s reputation as a career prosecutor and his adherence to Department of Justice guidelines. “Mr. Smith’s actions as Special Counsel were consistent with the decisions of a prosecutor who has devoted his career to following the facts and the law, without fear or favor and without regard for the political consequences, not because of them,” Breuer and Koski wrote in their letter, echoing the sentiments of many who see the investigation as an overreach.
The OSC has so far declined to comment publicly on the investigation or the letter from Smith’s attorneys. It remains unclear how long the probe will last or what its ultimate findings might be. For now, the episode has only deepened the sense of division and mistrust surrounding the intersection of law, politics, and presidential power in the United States.
As the country looks ahead to the next chapter in this ongoing saga, all eyes will be on the Office of Special Counsel and the Justice Department to see whether the principles of impartial justice can withstand the intense political pressures of the moment.
